England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		16/11/2018

Lord Justice Singh and Mrs Justice Carr:

Introduction

1. This is the supplemental judgment of the Court in these three appeals following our judgment on 12 July 2018 [2018] EWHC 1762 (Admin). The full background and relevant facts are set out in that judgment, and we adopt below the same definitions and abbreviations.
2. By our earlier judgment we dismissed the appeals of the First and Second Appellants, Mr Shumba and Mr Bechian, in so far as they were based on section 14 of the Act (passage of time) and section 21 of the Act (breach of Article 8 of the ECHR).
3. On the ground of appeal common to all three Appellants, namely that extradition would breach their rights under Article 3 of the ECHR, we were satisfied on the evidence that, in relation to the four prisons with which we were concerned, there might be substantial grounds for believing that the Appellants faced a real risk of inhuman or degrading treatment if they were extradited. However, the evidence was only that the Appellants could be detained at those prisons, and it was not clear how much space they would have and, in particular whether it would be less than 3m² or between 3m² and 4m². We therefore declined to discharge the Appellants immediately on Article 3 grounds. We concluded that there was sufficient evidence to require us to make a request for supplementary information of the French authorities in accordance with C-404/15 and C-659/15 Aranyosi and Caldararu [2016] QB 921 at [104] (see [87] to [89]).
4. Requests were duly sent in respect of each Appellant in the following identical terms:

i) In which part of which institution or institutions will [the Appellant] be detained if he is returned to France?

ii) Will [the Appellant] be accommodated in a cell which provides him with at least 3m² of personal space (excluding any in-cell sanitary facility) at all times throughout his detention? If the answer is Yes, will he have between 3m² and 4m²?

iii) Will the overall surface of the cell allow [the Appellant] to move freely between the furniture items in the cell at all times throughout his detention?

iv) What will the other detention conditions be for [the Appellant] throughout his detention, including whether he will be accommodated in a cell where he or someone he is sharing with is sleeping on a mattress on the floor, what the sanitary facilities there will be and whether the toilet will be fully partitioned from the rest of the cell, how many hours a day he will be allowed out of his cell, what meals he will receive and whether there remains a serious problem with rats and bedbugs at the prison?

Response from the French Ministry of Justice ("the MoJ")

5. The MoJ has provided responses, first on 7 September 2018, and then by second and third responses (following further questions from the Crown Prosecution Service) dated 18 October and 7 November 2018 respectively. The first response, whilst focussing on our questions, also referred to the fact that many French public prosecutors' offices had been receiving British requests for additional information about detention conditions in the short-stay prisons likely to house those extradited. The MoJ, acting as the central authority for judicial co-operation in criminal matters, intended to provide the British authorities not only with the data requested in this case, but also in the context of other requests made as part of the execution of other French EAWs.
6. The information provided can be summarised so far as material for present purposes as follows:

i) People handed over from the UK are almost invariably escorted by air. The entry point into France for the Appellants would be Orly (relevant court: Créteil) or Roissy (relevant court: Bobigny);

ii) If the prosecution to which the EAW relates took place or will take place in a court more than 200km from the point of entry into France, the extradited person will be detained, except in special circumstances, in either Villepinte or Fresnes for a maximum of 6 days. If in a court less than 200km from the point of entry, the extradited person will be detained in either Fleury, Nanterre or Fresnes;

iii) If the EAW is issued for the purposes of serving a final sentence, the person is presented on arrival to the Bobigny or Créteil courts, which have control over Villepinte and Fresnes respectively. If the case in question involved a decision made in absentia, the person handed over will be detained in either Villepinte or Fresnes for the appeal or objection period (10 days);

iv) All of the Appellants would spend at least their first few days either in Fresnes or Villepinte;

v) The likelihood of transfers depends on their penal status (as remand prisoners or those receiving a final sentence). Transfer is compulsory for convicts whose remaining prison term is more than two years;

vi) Following a decree of 4 May 2017, which we are told was an executive order, the choice of institution for accommodating prisoners is influenced by the prison occupancy levels of the short-stay prisons. The distribution of prisoners now follows rules offering more flexibility. Additionally, since early 2018 a "drawing-rights mechanism" has been strengthened through a simplified and accelerated procedure used to reduce the overpopulation of Paris' prison institutions by distribution to prisons in other regions;

vii) A renovated prison at Paris La- Santé is opening at the beginning of 2019 which will help reduce numbers at Fresnes and Fleury-Mérogis;

viii) The occupancy level of the prisons are as follows:

- Fleury-Mérogis: 142%

- Fresnes: 192%

- Nanterre: 174%

- Villepinte: 184%;

ix) In terms of cell sizes and individual space, two people are often accommodated in single cells (using bunk beds) and three people in double cells (using triple bunk beds or mattresses on the floor). Specifically,:

- Fresnes: smaller single cells (8 to 9m²) (excluding sanitary facilities) have space for one or two detainees, leaving a minimum of 4m² per person. As of 23 July 2018, the 386 larger single cells (10m²) accommodated three detainees, i.e. 3m² per person (excluding sanitary facilities);

- Nanterre: there are 415 single cells measuring 8 to 9m2 excluding sanitary facilities, meaning that there is a minimum of 4m² for the one to two detainees. The double cells measure from 10 to 11m² excluding sanitary facilities i.e. 5m² per person. The 57 cells (as of 27 August 2018) with three detainees have at least 3m² per prisoner;

- Villepinte: there are 480 single cells measuring 9 to 10m² including sanitary facilities, meaning that there is 8 to 9m² of space, i.e. a minimum of 4m² for the one to two detainees. The double cells measure from 11m² to 12m² including sanitary facilities i.e. 5m² per person. The 40 cells (as of 27 August 2018) with three detainees have at least 3m² per prisoner. Less than 10% of Villepinte's prisoners have less than 4m² floorspace, the other 90% have more than 4m²;

- Fleury-Mérogis: there are 2,150 single cells measuring from 9 to10m², including sanitary facilities, meaning there is at least 4m² per detainee when two share the cell. The 60 double cells measure 14 to 19 m2, giving at least 6m² per detainee;

- as of 1 October 2018 there were no mattresses on the ground in Fresnes and Fleury-Merogis, 9 in Nanterre and 28 at Villepinte (but only in double cells with a surface area of 11 to 12m², not including the sanitary area, so providing an individual cell area of more than 3m²);

x) In all of these institutions, prisoners are able to move freely between furniture placed against each wall, either side of the door and window, and have a sanitary area separated from the rest of the cell by a low wall or partition;

xi) In terms of conditions, meals are served twice a day. Prisoners are, on average, confined to their cells on average for 15 to 16 hours a day, and are offered a minimum of 5 hours of activity per day (in workshops, general maintenance work, training and education, walks), not including time spent at the healthcare unit or visitors' sessions. They have daily walks. In these four prisons there are cultural programmes which include music, reading and writing workshops, and sports facilities and equipment with organised sports events;

xii) Bed bugs in Villepinte have been eradicated for several months now, with a new rapid disinfection protocol put in place. There have been no recent bed bug infestations at Fleur-Merogis. In Fresnes permanent eradication of bed bugs is a priority action, with regular "disinsectization" operations two or three times a week and whenever a specific report is made. In Nanterre only 21 cases of bed bugs were detected in 2018, all of which were the subject of immediate treatment. The MoJ stated that bedbugs were now a "marginal phenomenon" in the French prison estate, in particular in the Paris region;

xiii) All institutions have contracts for rodent control to tackle vermin which provide for regular intervention. In decisions made between October 2016 and April 2017, the Administrative Tribunal of Melun has directed the Fresnes administration to continue its efforts to combat pests by blocking the sewers and by maximising the level of rat extermination. The prisons accordingly took the measures of: placing new grating systems to ban the spraying of food outside; installing new bins in cells, with daily pick up of bags; carrying out poster campaigns; implementing a protocol for the control of bed bugs; recapping identified holes and fitting plates on sewers; concretising the yards; intensifying cleaning and extermination efforts with a new company attending 3 times a week (instead of twice a month) from November 2016 to March 2017, the purchase of new cleaning equipment and the creation of new general service jobs.

7. The MoJ has gone on in its first response to " assure…the British authorities that European prison standards, as set out in Article 3…, the Council of Europe's European Prison Rules and case-law of the European courts....are complied with by the short-stay prisons of Villepinte, Fresnes, Fleury-Mérogis and Nanterre, where the majority of people handed over by the United Kingdom on EAWs are expected to be imprisoned for the first few days on French soil". It repeated this assurance in its second submission.

The Appellants' position in response to the further material

8. The Appellants do not accept that this further material provides a sufficient answer to their remaining objection to extradition. It is said that the material falls far short of adequately addressing the real risk of an Article 3 breach. It confirms the poor conditions in which the Appellants are likely to be detained. Information regarding the regime does not accord with any of the other objective evidence available.
9. The Appellants submit that they will all be detained for at least 10 days in Fresnes or Villepinte, which have the worst conditions and overcrowding. The latest overcrowding statistics there show an increase, not a decrease, in population numbers. On the evidence before this Court it would appear that Mr Shumba and Mr Henta, serving sentences of less than 2 years, will remain there for longer. Mr Bechian could be transferred to a longer stay institution. The real risk of a breach of Article 3 cannot be discounted satisfactorily, in summary for the following reasons:

i) The further information shows that each Appellant will have at best a bare 3m². There is serious concern that for some of their imprisonment their space will fall short of this threshold;

ii) The MOJ's statement that detainees can move freely between the furniture items is no more than assertion and is inconsistent with other evidence, including evidence that cells of 9m² with 3 detainees inside, together with furniture, can be used;

iii) Alternatively, if the Court concludes that the Appellants would be given between 3 to 4m² of personal space, the strong presumption of breach remains, given the other material conditions. The suggestion that prisoners receive a minimum of 5 hours of activities per day, have daily walks and are confined for 15 to 16 hours a day is contradicted by the range of evidence as to the reality. The toilets are not fully partitioned and reports suggest deplorable hygiene, an issue that has gone unaddressed, as have issues of humidity, call systems, quality of food and violence. The MoJ does not say that the issue of rats has been resolved and it is clear that the measures taken so far are not working.

10. The Appellants submit that the MoJ's assurance is of little assistance (see Florea v Romania [2014] EWHC 2528 (Admin) and ML (Generalstaatsanwaltschaft Bremen) C-220/PPU). They also point to evidence from the OIP to the effect that the MoJ has failed repeatedly to implement court-ordered improvements.

Discussion

11. The relevant principles of law are non-contentious, referred to in our earlier judgment, in particular at [15], [16], [24], and summarised at [34] to [40].
12. We approach the task before us on the basis of the principle of mutual trust and confidence between Member States. Ms Macdonald QC for the Appellants indicated in response to questions from the Court that she did not seek to go behind the MoJ's statements. We also proceed on the basis that our task is to assess current, not past, conditions.
13. As is apparent from our earlier judgment (at [87]), we considered the crucial evidence to relate to overcrowding in the four prisons with which we are concerned. The position is now clearer, both as to destination and overcrowding. All three Appellants will spend at least some days at the outset of their arrival in France in Fresnes or Villepinte. Mr Shumba and Mr Henta may remain in Fresnes or Villepinte, depending on what happens to their convictions. Mr Bechian, serving a sentence of more than two years, will be transferred to a different institution.
14. The further up-to-date information from the MoJ demonstrates that, in whichever prison they were to be placed, each Appellant would have at least 3m² of floorspace and a private sleeping place upon arrival as a detainee in France, together with the ability to move freely between the furniture items - for example 3m² if accommodated with two others in a single cell in Fresnes, or 3.6m² if accommodated with two others in a double cell in Villepinte and including the toilet, or 3.3m² excluding a toilet at 1m².
15. As for free movement within a cell, the MoJ expressly stated:

"In all these [Fresnes, Nanterre, Villepinte and Fleury-Mérogis] institutions, prisoners are able to move freely between furniture placed against each wall, either side of the door and window, and have a sanitary area separated from the rest of the cell by a low wall or partition (2008:implementation of the European Prison Rules).

So, in this particular case, Messrs Shumba, Bechian and Henta, who will have to be detained at Fresnes or Villepinte first, will each have a floor space of at least 3m² and be able to move around their cells without difficulty."

16. There is no reason not to accept this straightforward statement made specifically by reference to the Appellants. There is no proper basis for asserting that there would be additional furniture such as to impede free movement, nor would the presence of mattresses interfere with it. Ms Macdonald (rightly) did not press this point in her oral submissions to this Court.
17. The strong presumption of a breach of Article 3 identified in Muršic v Croatia [2017] 65 EHRR 1 and Ananyev v Russia [2012] 55 EHRR 18 does not therefore arise on the basis of lack of space or free movement.
18. That leads us to the question of other conditions. As we identified at [40] of our earlier judgment, where a detainee is allocated between 3 and 4m² of personal space, a violation of Article 3 will be found if there are other aspects of inappropriate physical conditions: in particular, regard will be had to access to outdoor exercise; natural light or air; availability of ventilation; adequacy of room temperature; access to private toilet facilities; and compliance with basic sanitary and hygiene requirements.
19. We accept (and it is common ground) that there is a real risk that the Appellants may be allocated between 3 and 4m² of personal space and that is the context for our consideration of the standard of other conditions. However, we are not persuaded that there is sufficient evidence of other inappropriate conditions such as to give rise cumulatively or otherwise to a sufficient risk of inhuman or degrading treatment.
20. In general terms, the further information demonstrates that prison conditions in France have been improving, not only in terms of expansion and renovation of the prison estate but also conditions. Moreover, there is a robust Administrative Tribunal system in place taking an active interest in prisoners' conditions, a factor which may be taken into account (see at ML (Generalstaatsanwaltschaft Bremen) C-220/PPU at [117]). Decisions of the Administrative Tribunal of Melun in 2016 and 2017 appear to have led to the French authorities putting in place extensive measures to combat pests. (We note that in July 2018 the same Tribunal directed that the MoJ improve the condition of the walled yards in Fresnes within 6 months, having made a similar order in 2015 with which the MoJ did not comply (and for which non-compliance it was fined). However, the MoJ has lodged an appeal against this order.)
21. In specific terms, the MoJ's responses indicate that the Appellants would have access to daily walks, activities, with regular meals and time outside their cells. The absence of a full toilet partition does not amount to a violation of Article 3. Ms Macdonald fairly accepted that in her oral submissions. Concrete steps have been taken and are being taken to address problems of bedbugs and rats. Ms Macdonald submitted that, whatever steps were being taken, they were not effective. Thus, for example, increased steps in relation to rats were said to have been taken since 2016, yet the CGLPL report published in 2018 demonstrated that rats were still a real problem. However, the submission was made by reference, at least in part, to material dating back to events in 2015 (or 2016), for example the MoJ's response in 2017 to the CPT report following the CPT's visit to France between 15 and 27 September 2015. The 2018 CGLPL report was based on visits to 70 prisons over the preceding three years. The MoJ states that bed bugs are now only a "marginal phenomenon". Additional factors raised by the Appellants do not aggravate the current conditions in detention such as to engage Article 3.
22. Finally, we should not only receive the information from the MoJ on the basis of mutual trust and recognition but are entitled also to take into account the MoJ's statement of assurance referred to in paragraph 7 above which, in context, is more than a bland assurance. It follows immediately upon a series of responses which demonstrate a direct and positive engagement with the issues raised by this Court and which considers the position of these specific Appellants by reference to Article 3, the Council of Europe's European Prison Rules and relevant case law. Although this Court did not request such assurances and simply asked certain questions with a view to eliciting information which it did not have at its earlier hearing, we are grateful for those assurances and are comforted by them.

Conclusion

23. In conclusion, the MoJ has responded directly to the questions raised in relation to the Appellants in our last judgment. Our central concern about a possible breach of Article 3 based on overcrowding has been answered. Ancillary concerns raised by the Appellants relating to other conditions of detainment do not persuade us, either individually or cumulatively, that there is a real risk of a breach of Article 3 based on other grounds. In the light of the further information provided, there are no substantial grounds for believing that, if extradited, the Appellants would face a real risk of being subject to inhuman or degrading treatment in breach of Article 3. The appeals will be dismissed accordingly.